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The Proper Interpretation for Diseases of the Peripheral Nerves – “When the Involvement is Wholly Sensory”?

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March 09

2017

On March 6, 2017, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Miller v. Shulkin. Mr. Miller, the veteran, had appealed VA’s denial of a disability rating greater than 10 percent for peripheral neuropathy of the left foot. The argument on appeal focused on the interpretation of the statement: “When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.” See 38 C.F.R. § 4.124a (2016).

Mr. Miller believed he was entitled to a rating greater than 10 percent because when a peripheral nerve disorder is more than “wholly sensory” (that is, manifested by both sensory and non-sensory-based symptoms) it must be rated as at least moderately severe and assigned a 40 percent disability rating. The VA, on the other hand, argued that the “wholly sensory” language of the regulation establishes a maximum disability rating for wholly sensory conditions rather than a minimum disability rating for conditions that are more than just “wholly sensory.”

The Court affirmed the Board of Veterans’ Appeals decision that denied a higher rating “[b]ecause the language at issue establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory.” In interpreting the plain language of section 4.124a, the Court found that the language “provides only a maximum disability rating for wholly sensory manifestations of incomplete paralysis of a peripheral nerve.” Contrary to the veteran’s argument, the Court determined that it did “not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level.”